November 16, 2022

Affirmative Consent and Drug Use (Part 1)

Affirmative consent laws in New South Wales, what do they mean?

Content warning: This blog mentions sexual violence in a general way.  

In this blog, we outline recent changes to consent laws in New South Wales. When reflecting on our sexual practices, it is important to understand these changes and the broader concepts that underpin our consent laws. In a separate post, we consider, in detail, strategies and practices to ensure consent in the context of sexualised drug use.    

As of the first of June 2022, consent laws in New South Wales are now centred around the concept of affirmative consent. Consent laws in New South Wales explicitly state that people must give and obtain consent before any sex act. In the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 consent is defined as free and voluntary agreement at the time of the act Sexual consent can no longer be assumed just because someone didn’t say no to sex rather someone must have actively said or done something to indicate that they consent. 

What is Affirmative Consent?  

Affirmative consent is based on the idea that everyone involved in the sexual activity is knowingly and voluntarily engaging; and that this has been communicated. Simply put, if you want to have sex with someone (or lots of someones!), then you need to say or do something to find out if they want to have sex with you too. Consent may be given by words or actions, so long as those words or actions create clear permission regarding willingness to have sex.  

Why were the laws reformed?  

Reforming the sexual consent laws in NSW around affirmative consent aims to make the prosecution of sexual offences and judicial processes around sexual offences fairer for victims and survivors of sexual violence. Whether these laws will have this effect is yet to be seen. You can read more about the legislation amendment here or access the updated act here 

What does this mean for people who use drugs or alcohol when engaging in sex? 

We all have an obligation to ensure that our sexual partners are consenting and enthusiastic, even during party and play. NSW legislation now says that a person does not consent if they are so affected by alcohol or another drug as to be incapable of agreeing to the sexual activity. If you are engaging in sex while using drugs or alcohol it is worth considering how this new law may impact you.  

We invite you to have a think about how you can be mindful of these principles that underpin our consent laws, especially in contexts where sex is happening alongside drug use. On this blog we outline some strategies that people use to respect boundaries and ensure consent in contexts where drugs are used to enhance a sexual experience.   

Some additional concepts that are covered by this legislation include: 

  1. Continuous consent: Consent is ongoing, fluid and can be withdrawn at any time. Changes in sex acts or sexual circumstances (for example an additional partner joining a sexual encounter) requires consent to be continually obtained.
  2. Consent and coercion: Consent can only be given freely and voluntarily. If someone is manipulated, or threatened to consent, this is not consent.


To all those who have been impacted by sexual violence, we want to acknowledge your experiences and remind you that help is available. We hope that by talking about sexual violence you might feel a little less alone on the harder days, and a little more able to reach out if and when you need help.

If you have experienced a sexual encounter that made you feel uncomfortable here are some organisations that offer support to all LGBTQ+ folks:     

  • QLife (3pm-12am) 
    Ph: 1800 184 527  
    Webchat available here   
  • Rainbow Sexual, Domestic and Family Violence Helpline (24/7) 
    Ph: 1800 497 212    
  • ACON NSW (9am-5pm) 
    Ph: 02 9206 2000  
  • 1800RESPECT (24/7) 
    Ph: 1800737732 
    Ph: 131415 if you need an interpreter 

Additionally, ACON’s Say It Out Loud website has an LGBTQ+ Sexual Violence Prevention and Response Toolkit available for anyone who may know someone who has, or has themselves, experienced sexual violence. You can also read more about the law and consent or how to establish consent on dating apps through the Say It Out Loud website. TransHub additionally has resources for trans and gender diverse  people experiencing sexual assault or coercion. 

This page is not a substitute for legal advice (we are not lawyers). To compile this post, we reviewed online sources authored by Katrina Sultana, for Stacks law firm.